Pursuing a vision of mutual confidence and cooperation in justice and home affairs

The Swedish Commissioner talks to Simon Coss about her new powers derived from the Amsterdam TreatyTHEY are few and far between, but Anita Gradin is one of those rare people who actually believes the Amsterdam Treaty is quite a good thing.

European Voice

9/16/98, 5:00 PM CET

Updated 4/12/14, 3:44 AM CET

The Swedish Commissioner in charge of justice and home affairs policy feels that one of the key new provisions of Amsterdam, setting up an “area of freedom, security and justice”, will provide her and her successors at the European Commission with far more room for manoeuvre in a field which has traditionally been dominated by EU governments.

“Here I get more space to take initiatives and to push; hopefully,” she explains.”The message from Amsterdam is that we really need to be more engaged in the areas of justice and home affairs and add them to the economic aspects of the European Union. Or, to put it another way, if the economic aspects of the single market are really going to function properly, we also need to have good cooperation in justice and home affairs. Cross-border crime often results from free trade.”

Under Amsterdam, much of the responsibility for introducing legislation on sensitive issues such as asylum and immigration policy and cooperation between judicial systems will move from the EU’s intergovernmental ‘third pillar’ to the ‘first pillar’.This means that whereas previously all significant laws had to be individually ratified by all 15 member state parliaments, future draft legislation will be dealt with under the more streamlined procedures of the Council of Ministers and European Parliament.

What all this amounts to in practice is that Gradin will be far more likely to see any initiatives she champions actually enter into force. She will also be able to make proposals for new EU directives and regulations on justice and home affairs matters, rather than the more unwieldy proposals for intergovernmental conventions which she is obliged to bring forward at the moment.

The justice and home affairs supremo is clearly relishing the prospect of being able to flex her muscles at long last.

One area where she may well use her new Amsterdam powers is in the fight against fraud, proposing a new EU directive to combat the problem.

There are currently two anti-fraud conventions, already agreed by justice and home affairs ministers, gathering dust in the in-trays of the Union’s 15 legislatures. Neither has yet been ratified and so neither can enter into force – a state of affairs which has prompted frequent attacks by Gradin on the governments concerned.

“After Amsterdam, I would be able to propose both of these initiatives as directives or regulations, so I could skip the ratification process. I could simply withdraw the proposal for a convention and say I would like to replace it with a proposal for a directive or a regulation,” she explains.

But the Commissioner – a former career diplomat – concedes that the best way to ensure that the new provisions of the Amsterdam Treaty work effectively is by trying to encourage governments to work together rather than by bullying them into submission.

“We have to realise that the area of justice and home affairs is new on the agenda. Some of the issues involved are very close to national hearts and there is not that much experience of cooperation. So it is important to have a dialogue and engage in confidence-building work as we are doing now,” she says.Shortly before the summer break, Gradin published a comprehensive discussion paper setting out how she felt Amsterdam’s area of freedom, security and justice would work in practice.The importance of grasping the need for cooperation between 15 very different legal systems within the Union was one of the report’s basic conclusions.

“That was the first lesson I learned when I came to this job. I started by visiting all the EU capitals and among other things I met with all the ministers of justice. When we summed up the results of the meetings we found out one thing, and that was that there were 15 perfect legal systems in the European Union,” she says dryly.

Gradin argues that the solution to this conundrum is not to try to harmonise legal systems, which she freely admits “will not happen in my lifetime”. Rather, she stresses the need for a far greater degree of cooperation and mutual recognition between government departments and legal professionals, who are still surprisingly suspicious of each other.

“Many letters I get from businesses complain that they are upset that they have lost their cases because of bad cooperation between courts,” she explains. “How can a judge in a court in Brussels be able to talk to somebody in Stockholm? How can they understand each other’s language?”

Gradin points out that such cross-border legal problems are remarkably common. “Take car accidents. It is not enough that you have your green card. Say there is an accident in Germany involving somebody from Sweden and someone from Italy. How do you handle it? These are concrete things that we have to talk about,” she insists.

Gradin says that what is needed is not harmonisation but practical solutions to real problems. She points to the example of a recent Commission proposal to tackle the problem of credit card fraud to illustrate this pragmatic approach.

“What you can say is that such behaviour is a criminal act and should be defined as such in all our legislation,” she argues.

Another key element of Amsterdam’s area of freedom, security and justice is asylum policy. On this point, Gradin is quite adamant that changes need to be made.In particular, she shares the view set out in a recent Austrian presidency paper that the 1951 United Nations-backed Geneva Convention, which still forms the backbone of international asylum policy, is simply not suited to dealing with today’s refugee crises.

“How do we give justice to the people who are knocking at our doors? I would say that the Geneva Convention is out of date because it doesn’t cover the problems we have today. It is very much a Cold War document,” she says.

Gradin is particularly critical of the fact that the convention fails to deal adequately with large influxes of refugees, such as those entering the EU during the war in ex-Yugoslavia. She recently proposed two joint actions specifically designed to tackle the problem of large numbers of asylum-seekers.

She is also concerned that the positive effect of moving asylum and immigration policy from the intergovernmental third pillar into the mainstream of EU lawmaking could be somewhat neutralised when the non-EU Schengen agreement, which also includes rules on entry to the Union, is absorbed into the third pillar.Negotiations are still under way to determine exactly how Schengen will be incorporated into EU law once the Amsterdam Treaty comes into force.

“It would be a little bit schizophrenic if we moved asylum and immigration from the third pillar to the first and then said that Schengen, which also deals with immigration, can only be put into the third pillar,” concludes Gradin.